IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 5.2.2010
CORAM:
THE HONOURABLE MR.JUSTICE ELIPE DHARMARAO
AND
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
Writ Petition No.21234 of 2000
and
W.M.P.No.30905 of 2000
1.Dhanushkodi Ammal
2.Parameswari
3.Kandavel
4.Senthilvel (Minor)
5.Vijayanand (Minor)
(Minors represented by their mother and
next friend Parameswari) ... Petitioners
Vs.
1.The Land Commissioner,
Chepauk,
Madras-5.
2.The Land Tribunal,
Thanjavur.
3.The Authorised Officer and
Asst.Commissioner (Land Reforms),
Tiruchirapalli. ... Respondents
* * *
Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari calling for the records of the Authorised Officer proceedings initiated against the petitioners herein that culminated into issue of final statement published in the Government Gazette, dated 16.12.1992 in M.R.1 9/A/Lalgudi (58-61 (4) confirmed in and by the proceedings dated 26.4.1994 of the Land Commissioner, Madras in F1/R.P.No.35 (L.Ref.) on his file and confirmed in and by the proceedings inS.R.P.No.29/86, dated 29.9.1998 on the file of the Land Reforms Special Appellate Tribunal, Madras and quash the same.
* * *
For petitioners : Mrs.Hema Sampath,
Senior Counsel for
Mr.C.R.Prasanan
For R.1 & R.3 : Mrs.Malarvizhi Udayakumar,
Spl.G.P. (Writs)
* * *
O R D E R
ELIPE DHARMARAO, J.
One Ayyavu Muthiriyar of Ananthimedu, hamlet of Sathamangalam, Lalgudi Taluk, was the land owner, whose holding was attracted by the provisions of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act 58/61, had two wives, by name Ponnupapammal and Papathi Ammal. Through the first wife Ponnu Papammal, he had two daughters Pichaiammal and Nagarathanam and through the second wife Papathi Ammal, he had three daughters Periakkal, Dhanushkoti (the first petitioner) and Parameswari (the second petitioner). Petitioners 3 to 5 are the children of the second petitioner Parameswari.
2. From the materials placed on record it is seen that the Authorised Officer concerned found that on the crucial date i.e. 6.4.1960, the landowner’s family consisted of the landowner, his first wife Ponnupappa, his second wife Pappathi Ammal and his unmarried daughter Parameswari (the second petitioner herein). On 23.3.1955, the land owner executed a deed of settlement in favour of his five daughters. His first wife owned 8.75 acres and on his second wife, he settled 6.46 acres of land. According to the respondents as on 6.4.1990, the properties owned by Ayyavu and members of his family, as defined under Section 3(14) of the Act, were as follows:
Ayyavu : 30.00 standard acres Ponnu Papammal (the first wife) : 7.29 standard acres Papathi Ammal : 6.92 standard acres (the second wife) Minor Parameswari : 20.02 standard acres (the second petitioner) ------- 69.23 standard acres -------
Periakkal, the eldest daughter through his second wife, died leaving 17.58 standard acres and in accordance with the settlement mentioned above, the second petitioner Parameswari got half of the said properties and thus the total holdings of Parameswari got increased to 28.79 standard acres.
3. Thereafter, the second petitioner herein by name Parameswari, who was a minor at that time, by her father and next friend filed W.P./No.454 of 1963 before this Court for issue of a Writ of Prohibition directing the respondents (the State of Madras and the Authorised Officer) to forbear them from making any proceedings in pursuance of the notice dated 2.1.1963 issued to her, calling upon her to submit a return under Section 8 of the Act on the ground that the Act is ultra vires and that in any event, the definition of the word ‘family’ under Section 2(14) is arbitrary and discriminatory since if the said term ‘family’ is given effect, she would lose 8.79 acres as she remained unmarried and that the land owned by her i.e. 28.79 standard acres should not be taken into account while determining the surplus land available for requisition. In the meanwhile, Ayyavu submitted a return dated 31.1.1963 to the Authorised Officer, wherein he has stated that his holding alone should be taken into account in fixing the ceiling and that his daughter Parameswari’s property should not be tagged on to his property. It is seen that the return submitted by Ayyavu was not complete, since he did not fill up the annexure-J under Form-2, giving particulars of the land, which he desired to retain within the ceiling area and the land which he desired to be declared as surplus land under Section 8(1)(viii).
4. Thereafter, the Authorised Officer issued a notice to Ayyavu under Section 10(1) of the Act regarding an inquiry, giving time till 10.7.1963 to offer his explanation and posting the inquiry to 16.7.1963, but, before receiving the aforesaid notice, Ayyavu died on 23.6.1963 and his first wife Ponnu Papammal also died in August 1963 and therefore, on 1.7.1963, Papathi Ammal, the second wife of Ayyavu, filed her objections in reply to the notice dated 2.1.1963, contending that minor Parameswari’s properties should not be taken into account separately for the purpose of the Act and not to be tagged on to the properties left by the deceased Ayyavu. One Subramanyam, grandson of the landowner Ayyavu through his first wife Ponnu Pappammal, who claimed rights under the Settlement dated 19.5.1963 has filed a memorandum of objections dated 24.8.1964 contending that the surplus lands should be deducted only from and out of the minor Parameswari’s property.
5. The Authorised Officer conducted an enquiry under Section 10(1) on the objections filed by both Subramnyam and Papathi Ammal and he over ruled the objections filed by Subrmanyam on the ground that Subramanyam is not a ‘member of the family’ as defined in the Act and that his claim under the Settlement Deed dated 10.5.1963 is hit by Section 22. As against the said order of the Authorised Officer, I.T.C.H.A.No.3 of 1966 was filed before the Land Tribunal (Subordinate Judge), Pudukottai and the said Tribunal, by the order dated 24.6.1966, set aside the order of the Authorised Officer and remanded the matter to the Authorised Officer for framing certain points and calling upon him to render his findings on those points. As against the said findings of the Land Tribunal, Civil Revision Petition No.1562 of 1966 was filed before this Court wherein a learned single Judge of this Court, by the order dated 24.12.1970, set aside the order of the Land Tribunal and further observing that Su8bramaniam need not be consulted in the matter of specifying the surplus lands as he was not a member of the family of the land owner and that the Authorised Officer would pass an order under Section 10(1) of the Act, after obtaining the required information.
6. It is further seen from the materials placed on record that thereafter, a draft statement under Section 10(1) of the Act was published in the Government Gazette, dated 16.2.1972 and it was served on Pappathi Ammal and her unmarried daughter Parameswari. Again, P.Subramanian and five others filed objection petitions against the above said draft statement under Section 10(1) of the Act, but this objection was ignored by the Authorised Officer, relying on the earlier judgment of this Court in C.R.P.No.1562 of 1966, holding that Subramaniam is not a member of the family on the crucial date and thus he need not be consulted.
7. In the meantime, on 7.1.1971, this Court, in C.R.P.No.66 of 1968 has held that the Authorised Officer was empowered to declare surplus lands under Sections 10(5) and 15 of the Act, only if the land owner was alive on that date and that the heirs could not be proceeded for. Following this dictum laid down by this Court in the above said C.R.P.No.66 of 1968, the proceedings under the Act against the estate of the landowner Ayyavu Muthariyar were dropped. But, they were re-opened based on a subsequent judgment of the Honourable Supreme Court in C.A.No.1667 of 1981, dated 11.2.1982, reported in AIR 1982 SC 865 = (1982) 1 SCC 680 (Bhikoba Shankar Dhumal v. Mohan Lal Punchand Tathed), thereby holding that ‘the proceedings initiated under the Act can be continued in the name of the land owner, as if the land owner was alive, by impleading their legal heirs in the proceedings as if the landowner was alive on the notified date of the Act, since his death subsequent to that date, will not alter the situation and that proceedings under the Act can continue in the name of the landowner, by impleading his legal heirs in the proceedings’.
8. Thereafter, the final statement was published on 16.12.1992 and Section 18(1) Notification was published on 19.2.1993 and the surplus lands have since been assigned as per the Act to eligible persons. Thereafter, the petitioners have appealed to the Land Commissioner in February, 1993 against the final statement published on 16.12.1992 and since the Land Commissioner rejected the petition as per the order dated 26.4.1994, a Special Revision Petition No.29 of 1996 was preferred before the Tamil Nadu Land Reforms Special Appellate Tribunal, Chennai and since the said Appellate Tribunal also refused to interfere with the final statement and final notification issued by the Government in the case and thus dismissed the said Special Revision Petition, the petitioners have come forward to file this writ petition.
9. The learned senior counsel appearing for the petitioners would argue that since on an earlier occasion, the proceedings initiated against the landowner were closed, re-opening the same under the guise of revision or otherwise is illegal and therefore, the impugned order is liable to be set aside. The learned senior counsel for the petitioners would further argue that the suo motu power of revision vested in the Land Commissioner were not intended to be exercised unreasonably and unfairly and since in the case on hand, a finality of decision has already been arrived at by the authorities concerned, by closing the proceedings initiated earlier, under the guise of suo motu powers, the Land Commissioner once again cannot reopen the issue that too with a long delay.
10. In support of her contentions, the learned senior counsel for the petitioners would rely on the following judgments:
1. R.V.APPASWAMY vs. AUTHORISED OFFICER (LAND REFORMS) KOVILPATTI, TIRUNELVELI DISTRICT [1982 (1) MLJ 219];
2. K.P.AYYEEMUTHUSWAMI GOUNDER vs. THE LAND COMMISSIONER, BOARD OF REVENUE, LAND REFORMS, MADRAS AND ANOTHER [1982 (1) MLJ 133];
3. V.S.PARTHASARATHY MUDALIAR vs. THE AUTHORISED OFFICER (LAND REFORMS), KANCHEEPURAM [VOL.95 L.W. 707];
4. TIRUMATHI MAJORANJITHAM vs. THE AUTHORISED OFFICER (LAND REFORMS), NAGAPATTINAM EAST, THANJAVUR DISTRICT AND ANOTHER [1984 (2) MLJ 474];
5. THE STATE OF TAMIL NADU REPRESENTED BY THE ASSISTANT SECRETARY, BOARD OF REVENUE, (L.REFS.), CHEPAUK, MADRAS-5 AND ANOTHER vs. C.CHANDRA MOHAN AND OTHERS [1986 (1) MLJ 382];
6. G.R.RADHAKRISHNAN vs. THE AUTHORISED OFFICER, LAND REFORMS, KANCHEEPURAM [1986 (2) MLJ 57];
7. THE AUTHORISED OFFICER (LAND REFORMS), KANCHEEPURAM vs. B.BALACHANDRA REDDY [1986 (2) MLJ 350].
11. In the first judgment cited above, reported in 1982 (1) MLJ 210, a learned single Judge of this Court has held as follows:
“The language of Section 50(9) being similar to that in Section 15(a) of the Act, the principle that the power under the latter provision only applies to mistake in the correctness not of the merits but of the form of the entry in the final settlement and that it is directed against clerical or arithmetical mistakes, as held in Syed Rabia Beevi V. The Authorised Officer, (1970) 2 M.L.J. 700 : 83 L.W. 555, applied with equal force with regard to the scope of the power under Section 50(9) of the Act. The reasons given by the respondent for reopening the matter cannot be sustained in view of the principle that the power to correct a bona fide mistake in regard to any entry cannot take within its amplitude a power to correct mistakes on merits. The determination of the amount as per Schedule III, preparation of the assessment roll, considering the objections over the same and the publication of the final assessment roll have all been done adhering to the provisions of the Act, and the whole matter got concluded long back after an investigation into and adjudication over the merits of the case. Viewed in this light, it is not possible to countenance the notice issued by the respondent after the lapse of 3 years and 6 months under Section 50(9) as to making corrections in the final assessment roll on the ground of bona fide mistake and recovering the compensation already paid.”
12. In the second judgment cited above, reported in 1982 (1) MLJ 133, the learned single Judge of this Court has held as follows:
“The suo motu power of revision in respect of orders passed under Section 50(5) of the Tamil Nadu Act LVIII of 1961 is not intended to be exercised arbitrarily without taking note of the consequences, which have followed pursuant to orders already passed under the Act. In the instant case, the authorities were declaring nil compensation for the lands acquired under the Act and at the same time, they had already determined and were reaping the benefit of the value for the same lands assigned to third parties. Practically this would amount to unjust enrichment by the State at the expense of a citizen like the petitioner. The suo motu powers of revision under Section 82 of the Act reserved for the first respondent are not intended to be exercised to lead to the above result. Any power vested with a public authority is not intended to be exercised unreasonably and unfairly. Any element of caprice or arbitrariness in the exercise of such power cannot be tolerated by Courts when it is brought to their notice by citizens who are put to prejudice and loss by such exercise of power. This compels the interference in writ proceedings.”
13. In the third judgment cited above, reported in Vol. 95 L.W.707, another learned single Judge of this Court has held that:
“In the instant case, it is not the clerical error or the bona fide mistake contemplated under S.15 of the Act that is sought to be revoked by the order under revision; but the Authorised Officer who revised his own order resorted to a fresh assessment regarding the determination of the exemption. This is certainly revising its own order which cannot be done under the provisions of the Act. If it was aggrieved, certainly as pointed out by the learned counsel for the revision petitioner herein, the provision of S.78 ought to have been resorted to. There is absolutely no provision in the enactment which justifies such a revision indulged in by the Authorised Officer.”
14. In the fourth judgment cited above, reported in 1984 (2) MLJ 474, a Division Bench of this Court, has held as follows:
“It is clear from Section 10(5) of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land Act) that the draft statement shall be published and a copy thereof shall be served on the persons concerned, the tenants, creditors and all other persons who in the opinion of the authorised officer are interested in the land to which such draft statement relates. Section 12 of the Act deals with the publication of the final statement. This statement according to the section, must be published with details, of the holding and a copy thereof has to be served on the persons referred to in sub-section (5) of Section 10.”
15. In the fifth judgment cited above, reported in 1986 (1) MLJ 382, a Division Bench of this Court has held that:
“To find out whether there had been valid service of notice, the provisions of rule 8 must be looked into. As per this rule, any notice or order issued or made under the Act has to be served on an individual person by (a) delivering or tendering the notice to him in person or through his counsel or agent; (b) by delivering or tendering the notice to some adult member of the family and (c) by sending the notice or order to the person concerned by registered post, acknowledgement due. Only if all the three methods fail, the authorities can have resort to serving the notice by affixture. In the absence of evidence to show that the first three methods of service of notice were attempted and all of them failed, even if it is to be held that notice had been served by affixture, it will not constitute a valid service. When such a conclusion is reached, it goes without saying that the Land Commissioner cannot reject the revisions filed by the respondents on the ground that they had been filed beyond the prescribed period of two months from the date of service of notice.”
16. In the sixth judgment cited above, reported in 1986 (2) MLJ 57, a learned single Judge of this Court has held as follows:
“There is no provision in the Act which enables the Authorised Officer to review his earlier order or to reopen a closed issue. The only provision which is relevant in this case probably is Section 15 but that deals with clerical or arithmetical mistakes and not a review of the earlier order itself or passing a fresh order. The finding of the Authorised Officer that the lands covered by the sale deed dated 15th November, 1966 measuring 11.25 standard acres though standing in the name of the petitioner were lands purchased from and out of the income of the joint family properties and as such joint family properties is a final one which could not have been revised by the succeeding officer on the ground of clerical or arithmetical mistake.”
17. In the last judgment cited above, reported in 1986 (2) MLJ 350, a learned single Judge of this Court has held that
“An Authorised Officer has no jurisdiction to reopen suo motu an order passed by another Authorised Officer earlier holding that Act LVIII of 1961 was not applicable as the respondent holds an extent of 14.970 standard acres which is within the ceiling limit of 15 standard acres.”
18. Placing reliance on the above judgments, the learned senior counsel for the petitioner would argue that no opportunity was given to the legal heirs of the deceased landowner and that the respondents cannot set the clock back and would pray to allow this writ petition.
19. On the other hand, the learned Special Government Pleader would argue that the respondents have followed all the procedure contemplated under law, by giving sufficient and reasonable opportunities to the legal heirs of the deceased landowner and by following the judgment of the Honourable Apex Court, the proceedings are re-opened, wherein no illegality could be found with and on such arguments, she would pray to dismiss this writ petition.
20. Though much has been argued on the part of the learned senior counsel appearing for the petitioners that the Land Commissioner cannot revive his own order by using his suo motu powers and relied on the above quoted judgments, one thing must be made clear that on an earlier occasion, the proceedings were dropped by following a judgment of a learned single Judge of this Court in C.R.P.No.66 of 1968, holding that proceedings cannot continue against a landowner, who is dead; the said legal position was upset by the Honourable Apex Court in its judgment reported in Bhikoba Shankar Dhumal v. Mohan Lal Punchand Tathed, (1982) 1 SCC 680 = AIR 1982 SC 865 thereby holding that ‘the proceedings initiated under the Act can be continued in the name of the land owner, as if the land owner was alive, by impleading their legal heirs in the proceedings as if the landowner was alive on the notified date of the Act, since his death subsequent to that date, will not alter the situation and that proceedings under the Act can continue in the name of the landowner, by impleading his legal heirs in the proceedings’. Therefore, the law which was followed by the respondents on the earlier occasion was held to be bad.
21. There could be no doubt that the judicial decisions, unless otherwise specified, are retrospective and they would only be prospective in nature, if it has been provided therein. For this, we draw source from the judgment of the Honourable Apex Court in GENERAL MANAGER, UTTARANCHAL JAL SANSTHAN Vs. LAXMI DEVI AND OTHERS [(2009) 7 SCC 205].
22. Therefore, it can be held that the respondents have not committed any error in re-opening the case by following the judgment of the Honourable Apex Court, which is the law of the land.
23. But, another question has been raised on the part of the learned senior counsel for the petitioners that while exercising his suo motu revisional powers under Section 82, the Land Commissioner cannot re-open a case, wherein proceedings were already dropped and such suo motu power of revision is not intended to be exercised arbitrarily without taking note of the consequences which have followed pursuant to orders already passed under the Act. For better appreciation of this aspect, we shall now deal with Section 82 of the Act, which reads as follows:
“82. Revision by the Land Commissioner The Land Commissioner may call for and examine the recordof any authorized officer in respectof any proceeding under Section 9(3), 12, 13, 14(1), 14(2), 17(3), 18(4), 50(5) or 50(9) or the record of any proceeding under sub-section (2) of Section 54 and in respect of any other proceeding under this Act not being a proceeding in respect of which a suit or an appeal to the Land Tribunal is provided by this Act to satisfy himself as to the regularity of such proceeding or the correctness,legality or propriety of any decision or order passed thereon; and if, in any case, it appears to the Land Commissioner that any such proceeding, decision or order should be modified, annulled, reversed or remitted for reconsideration, he may pass orders accordingly:
Provided that the Land Commissioner shall not pass any order prejudicial to any party unless he has been given a reasonable opportunity of being heard.”
24. The revisional power vested on the Land Commissioner under this Section required him to satisfy himself as to the regularity of the proceeding or the correctness, legality or propriety of any decision or order passed by an Authorised Officer. In the case on hand, admittedly, on an earlier occasion, the proceedings were dropped by the Authorised Officer following the order passed by a learned single Judge of this Court in C.R.P.No.66 of 1968, but when the said law held by the learned single Judge was held to be bad by the Apex Court, the Land Commissioner has re-opened the matter, following the law laid down by the Honourable Apex Court, wherein we find no illegality or irregularity. But, the proviso of Section 82 makes it obligatory on the part of the Land Commissioner not to pass any order prejudicial to any party unless he has been given a reasonable opportunity of being heard. Therefore, it is to be seen whether opportunities were afforded to the parties concerned by the Authorities.
25. In the case on hand, when the matter was re-opened, following the dictum of the Honourable Apex Court in Bhikoba Shankar Dhumal v. Mohan Lal Punchand Tathed, (1982) 1 SCC 680 = AIR 1982 SC 865, the legal heirs of the deceased landowner were brought on record and due opportunities were given to them to put up their case. From the materials placed on record, it is also seen that the legal heirs of the deceased land owner also filed number of representations before the authorities and all of them have also been taken into account and during the final hearing before the Authorised Officer, the learned counsel appearing for the petitioners himself has stated that the petitioners have nothing more to say and requested the said Authority to pass orders as per law. Since notices have been duly served on the parties and they have also participated in the proceedings before the Authority and put in their submissions by availing due opportunities afforded to them and since the proceedings were re-opened pursuant to the law declared by the Honourable Apex Court in Bhikoba Shankar Dhumal v. Mohan Lal Punchand Tathed, (1982) 1 SCC 680 = AIR 1982 SC 865, the above judgments relied on by the learned senior counsel for the petitioners have no application to the facts of the case on hand.
26. The Tamil Nadu Land Reforms Special Appellate Tribunal has considered all the facts and circumstances of the case in their proper perspective and has arrived at an unerroneous conclusion of rejecting the case of the petitioners and we find no reason to cause our interference into the well merited and considered order passed by the said Appellate Tribunal.
For all the above reasons and discussions, this writ petition is dismissed. No costs. Consequently, W.M.P.No.30905 of 2000 is also dismissed.
Index: Yes (E.D.R., J.) (M.V., J.) Internet: Yes 5.2.2010 Rao To 1.The Land Commissioner, Chepauk, Chennai-5. 2.The Land Tribunal, Thanjavur. 3.The Authorised Officer and Asst.Commissioner (Land Reforms), Tiruchirapalli. 4.The Tamil Nadu Land Reforms Special Appellate Tribunal, Santhome, Chennai-4. ELIPE DHARMARAO, J. AND M.VENUGOPAL, J. (Rao) Pre-delivery Order in W.P.No.21234 of 2000 & WMP.No.30905 of 2000 5.2.2010.